Allenda, Kharizza Mae R.

Napa-eg, Melanie T.
Padilla, Kimberly Rose G.
APDR, 2:30-4:30, S

Reaction Paper On: The Neurophysiology of ADR and Process

Design: A New Approach to Conflict Prevention and Resolution.

By: Jeremy Lack and François Bogacz

Jeremy Lack and François Bogacz' research on “The Neurophysiology of

ADR and Process Design: A New Approach to Conflict Prevention and
Resolution” is about understanding how brain works and applying it to properly
administer Appropriate Dispute Resolution. It reiterates that Neuroscience is the
new fad or a fundamental awakening, providing new insights for the legal
profession. As the science for measuring brain activity advances, it supports
Anais Nin’s quotation, whereby we do not perceive things as they really are (i.e.,
objectively) but as we are (i.e., subjectively). This raises important new
implications for lawyers, judges, arbitrators, in‐house counsel, mediators,
conciliators, and a variety of other ADR professionals. It has an impact on how
we should start to interpret evidence, weigh witness testimony and (re)consider
findings of “facts”. This research paper also raises intriguing new insights into the
brain, conscious decision‐making processes, the role of emotions, and the ways
in which our neurobiological “hard wiring” might be impacting our behavior in
dispute resolution processes.
It seeks to examine not only how subjective perceptions may shape
outcomes but how the choice of the process itself can have unintended
consequences in terms of triggering certain behavioral pathways rather than
others, and possibly cause the conflict to escalate. The paper summarizes new
findings that already provide new food for thought, and raise new concerns
about dispute resolution processes and the traditional ways in which lawyers
and parties seek to resolve conflicts, as well as the innate tendency of conflicts
to escalate.

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 According to many theories, the human brain has evolved in terms of three
independent but interconnected layers of brain matter, referred to as the triune
brain. The layers are the Reptilian Brain, which is the most primitive level of the
human brain; the Limbic System, and; the Neocortex, which is the outer and most
layer of the human brain. These layers reflect different moments in the history of
the evolution of the human species, and how our decision-making processes has
evolved. The ways in which these layers may operate and interrelate can provide
fascinating new insights into how humans react and deal with situations of
conflict. Assuming that the human brain has finite and limited resources in glucose
and oxygen at any given moment in time, and that the human being has evolved
to maximize the efficiency by which oxygen and glucose are conserved or
consumed in the brain, it would appear that all senses are first scanned through
an unconscious emotional appraisal system, and depending on its first analysis
either the Reptilian System will be activated, or the neocortex will be enabled to
provide a cognitive appreciation of the stimulus and indulge in rational reflection
as to how best to adapt to the data the emotional system has highlighted for
attention. The three layers of the triune brain can thus be thought of as three
highly interconnected, but at the same time independent neural networks, which
can have different levels of activity and different levels of arousal.
The paper also recognizes the possibility to vulgarize recent discoveries in
neuroscience by suggesting that humans may be hardwired evolutionarily or may
have been created to respond to the neuro-commandments. The author submits
that much of observed behavior may not be optimally assessed at the cognitive
level, and that we seldom activate our “C-systems” when resolving conflicts. Our
tendencies to instinctively and rapidly filter information via emotional networks
before the frontal cortex can exert fully cognitive assessments of the situation, our
need to predict and avoid situations of uncomfortable status or pain, and our
social needs prevent us from behaving objectively.
Moreover, as shown in the experiment of The Framing Effect of “Keep” v.
“Lose”, it shows the extent to which human choices and behavior can be
influenced by a single word. By framing or re‐framing directions as procedural
choices instead of as orders, or by using neutral, positive or negative words, it
may be possible to change the very neural pathways and mental processes by
which decisions are made, leading to different outcomes. Take note that there
are three distinct types of ADR processes that use a neutral within Kalowski’s ADR
spectrum: mediation, conciliation and arbitration. What is important to cite is
that although negotiation is presented in Kalowski’s spectrum as being the most
consensual process, where the parties retain full autonomy, and where there is
nobody else present to evaluate the process or with whom a party can seek a

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coalition in deciding who is right and who is wrong, there is a natural tendency
for humans to try to use power or persuasion to convince the other party to let
the dominant party have things its way. Thus, although negotiations may start
off pleasant and consensual, there is also a tendency for them to become
increasingly conflictual, which is why third parties are often brought in to help
resolve the matter, or to simply decide it.
Noting that there are two fundamentally different modes of negotiation
possible, which typically lead to different forms of human behavior: one is
intuitive, and resorts to our natural neuro‐biological tendencies (the “10 neuro‐
commandments”), and the other one is counter‐intuitive, but can lead to a
better social process and optimize “C‐system” thinking to envisage and create
new solutions. The former type of negotiation is called “positional negotiation”,
in which two parties realize that they have different positions as to what should
be an acceptable outcome, and seek to persuade and influence one‐another
(exerting pressure if necessary) to abandon their respective positions. The latter
type of negotiation is called “interest‐based negotiation” (sometimes also
referred to as “problem‐solving negotiation”), where the parties try to avoid
taking positions but seek to identify one‐another’s needs and concerns, and
jointly explore options for mutual gain. Much has been written about both types
of negotiation, but they merit being reviewed once again in light of the possible
neurobiological implications that using one system or negotiation may entail as
opposed to another, and in light of the “10 neuro‐commandments. Based on
the Positional (Competitive or Adversarial) Dispute Resolution, in positional ADR
processes the “ten neuro‐commandments” are likely to be primed negatively
due to the inherently competitive or adversarial nature of these processes.
Here, it also tackled that Interest‐based negotiation or ADR processes are
counterintuitive and highly cognitive, requiring heightened cortical
thinking. They require conceptually separating the parties from the problem
(thus de‐personalizing negative personal emotions), focusing on interests rather
than positions (invoking “towards reflexes” as opposed to “away reflexes”) and
invoking mutual needs rather than independent Strategies.
There is considerable confusion in the international conflict resolution
circles between the words “mediation” and “conciliation”, which are believed
by many lawyers to be synonymous, but are in fact very different processes from
a neurobiological perspective. Arbitration, conciliation and mediation are three
commonly available forms of Appropriate Dispute Resolution. Understanding the
differences between them is important when assessing these procedural
choices from a neurobiological perspective, as mediation is a non‐evaluative
process, whereas in conciliation and arbitration the neutral’s subject matter

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expertise is typically sought to help set norms, make proposals or decide the
matter (acting evaluatively and as a person with whom a coalition can be
built). This distinction between arbitration, conciliation and mediation is very
important from a neurobiological perspective, but is often confused, especially
in international commercial disputes. In arbitration the parties delegate control
of the process and the outcome to a third party, the arbitrator or panel of
arbitrators sitting as an arbitral tribunal. The resolution of the dispute is thus
decided by the arbitral tribunal. This is a clear positional ADR process. The role
of the lawyers and the objective of the parties is to convince the tribunal to
resolve the matter in accordance with the positions on which the tribunal has
been briefed, and which the lawyers have advocated.
In conciliation, the process is somewhat positional, but also less clearly so
than in arbitration. The conciliator acts somewhat as an arbitrator, but does not
have the power to resolve the matter. The conciliator acts evaluatively, by
identifying objective norms by which the process would be involved by a
tribunal or court. The conciliator typically helps the parties to understand the
parameters that could be used to dispositive of the matter, and to understand
the key elements in each party’s line of reasoning, identifying key issues of fact
or law. It is ultimately a process of helping the parties to reach a compromise
within a Zone of Possible Agreement (ZOPA) defined by the parties’ positions.
In mediation, however, the process ought to be purely cooperative and
interest‐based. There is no ZOPA. Nor are there any objective criteria. The goal
in mediation is for the mediator to focus on each party’s subjective desires, and
to help them to articulate them and reach an outcome based on these
subjective considerations, which will be mutually satisfactory to both
sides. Unlike a conciliator, a mediator refrains from making proposals unless
requested to do so by both parties or as part of a general brainstorming exercise
to propose new options. The mediator’s job is to help the parties to reach a
resolution to the dispute that is based on their subjective needs and interests,
looking to the future. From a neurobiological perspective, the job of a mediator
may be described as minimizing perceptions of danger, enabling cognitive
appreciations of emotions (e.g., verbalizing them) to dampen amygdala and
help the parties self‐regulate, recognize ADR not only as a facilitated
negotiation, but as part of a social process in which the disputants can relate
“in‐group”, bond, demonstrate empathy, and build comfortable social
relations. The mediator enables the parties in so doing to dampen “X‐system”
cognition, and resort to “C‐system” optimal decision‐making, allowing cognitive
assessments of possible rewards (perspective taking v. empathy) to shape future
outcomes cooperatively.

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 This is not to say that mediation is better than arbitration or
conciliation. This is not to say that mediation is better than arbitration or
conciliation. Each dispute has its own dynamic and all three processes have
the benefit of enhancing reflective v. reflexive appreciation, albeit in different
ways. Each one, when managed properly, can assist the parties in reaching
outcomes that can be enforced (if necessary) or complied with, and faster and
cheaper outcomes than resorting to traditional litigious pathways.
Furthermore, the research provides that the ten neuro-commandments
suggest that the type of process that is used is likely to have a huge effect on
the outcome. The Conflict Escalation Theory is considered a vital element to
take into account when designing ADR processes because such concept is of
great help in identifying where the conflict currently stands, and its propensity to
escalate further or to de-escalate. Glasl’s 9 step scale suggests that there are
three possible zones in which the parties may wish to resolve a conflict: a “win-
win zone” where the parties can work cooperatively, a “win-lose” zone, in which
there can be a winner and a loser in a conventional ADR process, and a “lose-
lose” zone where the parties may be stuck and may feel that they need a third
party neutral to simply come in and decide the situation for them. Once the
stage of the conflict has been identified through Glas’s escalation model, this
will allow the parties to have an idea of their current position and which area of
the scale they would like to resolve the dispute. This simple act of identifying the
position of the parties in the scale may lead to a greater awareness of the steps
to avoid if one party wants to prevent a problem form escalating out of control.
We think that the scale is very helpful in analysing conflicts from a
neurobiological perspective and when thinking of appropriate procedural
interventions.
It is possible to see from the illustration of the Glasl’s escalation scales how
the nine steps corresponds to the “ten neuro-commandments”, and to
understand how each of the ten social and behavioural drivers can be affected
by procedural interventions as the conflict escalates. At this stage, it is important
to realise the how the presence of an evaluative or non-evaluative neutral (a
mediator, conciliator or arbitrator) can make a big difference. We found out
that mediation can be effective for de-escalating the conflict at any stage
while arbitration can be effective for managing late stage conflicts. It is vital for
these neutrals to realize the potential impact of their additional presence, and
to adapt themselves and their social behaviour to build upon pre-existing
cooperative and “in group” behavioural reflexes. Also, we also learned that it is
important for the neutral not to act evaluatively and not to assert a high sense
of status for they can also be treated as a threat.

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 Mediation as one of the three commonly available forms of Appropriate
Dispute Resolution has often been described as a facilitated negotiation, it is
also considered as a social process, where the mere presence of one or more
neutrals will disrupt traditional patterns of social interaction and create a new
opportunity of developing a new sense of shared community dynamics for the
purpose of allowing the parties to resolve their differences collaboratively. As
discussed in the research, David Rock, a leader in the field of leadership and
motivational management, has coined the word SCARF as a useful mnemonic
to remember five key social drivers that may influence mediation. He believes
that behaviour can be simply monitored and affected by focusing on these five
key frivers of social behaviour: Status, Certainty, Autonomy, Relatedness and
Fairness (SCARF). Rock’s model can be applied to the field of conflict resolution
and can help neutrals and lawyers to think about suitable ADR processes and
interventions to prepare and resolve disputes and determine how and when to
make certain interventions. SCARF can help to think not only in terms of
reaching settlements, but in terms of what process will correspond best to the
parties’ needs and interests, and will result in outcomes that will have a greater
chance of being complied with. It is thus incumbent in neutrals when working as
mediators or conciliators to be particularly sensitive to the five social drivers. It is
also important for mediators and conciliators to recognize the lack of certainty
that may be affecting the parties’ willingness to try these proceedings, as well as
that of their counsel. Ultimately, SCARF are reminders that can be used to help
all participants feel valued, safe, autonomous, inter-related, and capable of
working collaboratively to generate the best outcomes.
In this paper, we gained knowledge on the importance of neurobiology in
understanding human reactions and how it could be helpful in the process of
dispute resolution. It is amazing how one’s brain could affect one’s whole person.
We all unconsciously become what we, at times, do not want to become
because of our reactions to situations we do not have control of.
The theory of evolution of the human brain is captivating as it shows how a
person’s reception of information could affect not only himself but also the
people around him. The mysterious ways of how the brain works is interesting as it
shows the extent to which human choices and behavior can be influenced by a
single word. It is also good that the paper recognizes other possibilities, like the
humans being hardwired evolutionarily or being created to respond to the neuro-
commandments. I think that the understanding of neurobiology should become
part of the legal education. It will be helpful to everyone concerned with the
dispute resolutions.

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 After reading this research paper, we noticed how detailed the facts are
presented on how it tackled the importance of neurobiology in understanding
one's personality. We are amazed at how the experiments are conducted to
measure one's brain activity to help in determining how human beings react to
situations that can be of help in finding techniques to arrive in a successful
dispute resolution. What fascinates us the most is how they admitted that really
there is no real choice on what technique is to be used in a dispute resolution for
it will depend how the parties will react to it and how the dispute resolution
professional implements the resolution technique.
We think the idea of the researchers in this research is that to show that an
appropriate dispute resolution is feasible also aside from the traditional “court
resolution” by presenting neurobiology as the main basis in understanding how
brain works as supported by numerous experiments. Almost all of us think that
when there is a conflict, we immediately resort to court proceedings which is
costly and yes, it requires a lifetime to set hearing dates and such. But, no, there
is what we call an Appropriate Dispute Resolution where the parties can settle
rifts or misunderstandings without going to the courts. This will help a lot in court's
attempt to unclog dockets set for hearing to free space in the judiciary for a
better disposition of Justice in the country. For whatever reasons we may claim,
still, justice delayed is justice denied considering all aspects it can affect.
We are surprised that many issues are raised in ADR and process design
when considered from a neurobiological perspective. We have learned that
neurobiology would suggest that we are all highly inter-dependent, that we
automatically seek status, expect recognition of our perception of self-deemed
status, and require positive relations with others. We appreciate how the
research discussed the purpose of understanding the different alternatives to
provide a reference point with respect to time, costs, possible outcomes and
likely consequences if no agreement is reached, and to see if the parties can
work cooperatively to generate better outcomes. Even though our knowledge
of neurobiology is incomplete, fortunately, simple tools, as discussed in the
research paper, already exist that can be used to help in conflict resolution
which do not require scientific understanding or accuracy, but can help to
trigger awareness of neurobiological influences that may be driving the process
and can be used by neutrals to shape ADR processes.
In conclusion, the overarching principle from a neurobiological
perspective is that the optimal cognitive outcomes can only be achieved by
paying attention to the process itself, as well as the underlying emotions and
social dynamics that are affecting the parties’ behaviour.

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